history of judicial review

President John Adams lost the election of 1800. Two days before Adams’ term ended, he appointed an array of Federalist party judges to the United States circuit courts to maintain a Federalist party stronghold against the Democratic-Republicans. To Adams’ dismay, Secretary of State John Marshall was unable to deliver all of Adams’ judicial appointments within the remaining two days of Adams’ presidency. Thomas Jefferson, the inaugurate, instructed his Secretary of State, James Madison, to forsake the remainder of Adams’ commissions. William Marbury, one of Adams’ commissions, requested that the Supreme Court implement a mandamus, a judicial remedy legally obligating Madison to deliver Adams’ requests, which would force James Madison to complete Adams’ judicial appointments to the United States circuit courts – even against the will of Jefferson.

 However, in spite of having clear political links to John Adams, Chief Justice John Marshall faced a serious dilemma, which manifested itself in Marbury v. Madison. If, on the one hand, Marshall decided not to impose a writ of mandamus, then he would bolster the political power of the Democratic-Republican rivals. On the other hand, if he decided to issue a writ of mandamus, then Madison and President Jefferson could ignore the ruling, which would result in a blow to the “judicial prestige” of the Supreme Court.

Chief Justice John Marshall was able to structure the trial in a way that partially reconciled the political dilemma presented by Marbury v. Madison by breaking the case down into three main questions. The third question addressed the crux of the case – the issue of the writ of mandamus – while the first two questions allowed Marshall to declare Madison’s neglect of Adams’ commissions to be illegal. However, while the Court concluded that James Madison’s neglect of Adams’ commissions was illegal, no remedy or writ of mandamus could be issued by the Supreme Court because it fell outside of its legal scope. While it is true that the Judiciary Act of 1789 – known as one of the most successful pieces of legislation ever adopted by Congress – seems to allocate the Supreme Court the power to issue a remedy, the act itself was deemed to be invalid. As a result of Marshall feeling impotent, as the case did not really address anything, the principle of judicial review – the ability of the Supreme Court to declare a law passed by Congress or state legislatures as invalid insofar as it violates the American Constitution – was set forth. Marshall took the opportunity to advance the principle of judicial review through the case of Marbury v. Madison, especially at a time when the Democratic-Republicans were preoccupied with the specificities of the case.

contemporary applicability of judicial review

To what extent should judicial review be applied today? Judicial review in the Marbury era was applied in a significantly different historical context than it is presently. Traditionally, judicial review was utilized in legal cases where rights had been established over the course of hundreds of years. Courts would abide by those deeply entrenched rights and never question certain assumptions - such as the degree of desirable social change that might potentially need to be invoked. Conversely, judicial review in courts today regularly involves issues concerning minority rights. 

However, little precedent exists for determining cases of minority rights without having to make decisions that are entwined with political debates and advancing social policy. To that effect, the complete ambiguity in these court cases has been further amplified by political discussions surrounding the debate on whether minority groups ought to receive “special protection” or be forced to assimilate into mainstream society. Yet, it seems hardly democratic to reject the notion that minority groups should not receive “special protection,” as that implies the majority group would be left to govern the public, motivated by their own interest, even to the detriment of minority groups, which seems both undemocratic and unconstitutional. It then follows that judicial review is vital to the functioning of the government. Without it, governmental institutions are not obliged to protect minority groups. In the context of judicial review, the Supreme Court acts as the paramount interpreter of law and to mould the trajectory of social change that is necessary. Law and politics must be distinguishable; otherwise, the American polity’s democratic fabric is unstable, as it is threatened by social disintegration.

Essentially, the core of judicial review is the embodiment of philosophical principles that the Western democracies professed in the 1930s – that religious, racial, and other forms of discrimination will not be tolerated. Such a principle culminated after the horrors witnessed in Nazi Germany. Therefore, judicial review acts as an institutional mechanism to uphold the paradigm of equality and just treatment for all in which laws could serve to impede. However, judicial review doesn’t come without its drawbacks. Moreover, every decision that a judge makes necessarily alludes to impartiality which leads the electorate to demand the selection of judges who align with the majoritarian view. Judges who are selected are only slightly better positioned than legislators to protect minorities, since the electorate demands judges who are in line with the majority.